This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mark Ajaak Cham,
Filed July 23, 2002
Robert H. Schumacher, Judge
Mark Shepherd, Worthington City Attorney, Gordon L. Moore, III, Assistant City Attorney, Von Holtum, Malters, Shepherd, 607 Tenth Street, Post Office Box 517, Worthington, MN 56187-0517 (for respondent
John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Mark Ajaak Cham challenges the district court's refusal to give a requested jury instruction. Cham contends that because he was charged with the crime of refusing to submit to testing, he is entitled to an instruction of reasonable refusal. We affirm.
Sergeant Chris Dybevick was on duty with the Worthington Police Department during the early morning hours of December 10, 2000. Dybevick received a call from his dispatcher shortly after midnight to respond to a domestic dispute at 810 Humiston Avenue in the city of Worthington. He arrived at the house and observed two people arguing and yelling at each other. One of the parties was identified as Cham.
Dybevick spoke with Cham for approximately ten minutes. Dybevick testified that Cham spoke to him in English, that he was able to understand the things Cham said in English, and that Cham responded to him as he would expect someone who understood English to respond.
Cham told Dybevick that he had been drinking. The officer ran Cham's driver's license number and found out that Cham's driving privileges had been revoked. Dybevick then told Cham what he had found out. At the end of the encounter, Cham agreed to leave the premises and spend the night at a friend's apartment in Worthington. Another officer gave Cham a ride to his friend's apartment. Before he left, Dybevick told Cham not to return and not to drive.
Shortly thereafter, Dybevick received a call regarding the same location. He returned to the scene and observed Cham sitting inside a car with the lights on and the engine running. Dybevick watched Cham for a couple of minutes and observed him drive away. He followed Cham and pulled him over.
Dybevick asked Cham why he was driving when his license was revoked. Cham responded that he had to get the car away from his girlfriend's residence because he believed she might damage the car. After observing physical signs that Cham had been drinking and smelling alcohol on Cham's person, Dvbevick asked him to perform field sobriety tests, which Cham failed. Dybevick also administered a PBT to Cham, which he also failed.
During this encounter, Cham and Dybevick conversed for approximately 20 minutes. Dybevick testified he did not see any indications in the way Cham responded to him that Cham might not understand what he was saying to him. A videotape of the entire encounter was admitted in evidence, which was taken from a video camera located inside the squad car. The videotape shows that repeatedly during the encounter Cham asked Dybevick to let him go and just forget about the incident.
Dybevick arrested Cham and transported him to the Nobles County Law Enforcment Center. At the center, Cham was brought into a booking room where Dybevick read him the Minnesota Implied Consent Advisory. Afterwards, Dybevick asked Cham whether he understood what was just explained to him. Cham replied that he did understand. Dybevick then asked Cham if he would like to consult with an attorney, and Cham replied he did not. Dybevick asked him if he would take a breath test, and Cham replied he had already taken a breath test. Eventually, Cham declined to take the test.
Dybevick read Cham the Miranda warning. He asked him if he understood what was just explained to him. Cham replied that he did not understand. Dybevick decided to reread the implied consent advisory with the assistance of an interpreter and asked Cham what language he needed in order to understand the information. Cham replied that he needed Arabic.
Dybevick called the AT&T Language Line, a service providing interpreters for 131 different languages, and obtained an Arabic interpreter. He reread the implied consent advisory to Cham using the interpreter. After he finished rereading the advisory, Dybevick asked Cham whether he understood what was explained to him. Cham replied, "Not a lot. Just a little."
When asked why he did not understand, Cham replied that he did not speak the kind of Arabic that the interpreter spoke. Cham claimed that he spoke an African Arabic dialect called Anouk. Dybevick called the language line for an interpreter who spoke Anouk. The language line did not have such an interpreter available. Dybevick showed Cham the complete list of languages that interpreters are provided for by the language line. Cham stated he could not find a language on the list that he understood.
Dybevick suggested trying the African language of Amharic. An Amharic interpreter was obtained through the language line and the interpreter talked to Cham. The interpreter told Dybevick that Cham and the interpreter could not understand each other. At that point, Dybevick considered Cham to have refused testing. A videotape in the record that shows the entire booking room encounter was admitted into evidence.
Afterwards Dybevick presented Cham with several documents that he said Cham needed to sign. Dybevick testified that he observed Cham engage in what he believed to be a meticulous reading of each document before signing. After the documents were signed, Dybevick asked Cham if he had read them. Cham replied that he had. Dybevick testified he then asked Cham how he could say he did not understand the implied consent advisory but was able to read the documents and that Cham stated that he did not read them, that he did not understand them, and that Dybevick made him sign the documents.
Cham testified at trial with the assistance of an Anouk-language interpreter. He testified that he did not understand most of what Dybevick said to him after they arrived at the booking room. Cham is originally a native of Sudan. On cross examination Cham testified that he has lived in the United States for approximately the past seven years, and, during this time, he has taken classes to improve his English. He further testified that he has held numerous jobs during his time in the country, but they were manual labor jobs that required no English language proficiency. Cham claims he understands some English, but needs a translator for the law. Cham admitted he has had prior contact with law enforcement regarding similar offenses and has previously given breath tests.
Cham was charged with one count of aggravated driving while intoxicated in violation of Minn. Stat. § 169.129, subd. 1, 2(a) (2000), one count of gross misdemeanor driving under the influence in violation of Minn. Stat. § 161.121, subd. 1(a), 3(c)(2) (2000), one count of gross misdemeanor refusal to submit to testing in violation of in violation of Minn. Stat. § 161.121, subd. 1(a), 3(c)(2) (2000), and one count of misdemeanor driving after revocation in violation of Minn. Stat. § 171.24, subd.2 (2000). Prior to trial, Cham moved the district court for, among other things, dismissal of the charge against him for refusal to submit to testing, alleging that language barriers prevented him from understanding the implied consent advisory. The district court denied the motion.
On May 16, 2000, Cham pleaded guilty to driving after revocation. A jury trial was held on the other charges. During the course of trial, Cham requested that an instruction be given to the jury regarding his affirmative defense of reasonable grounds for refusing to submit to testing. The district court refused Cham's request.
The jury found Cham not guilty of driving while under the influence of alcohol and aggravated violations but guilty of refusal to submit to testing. Cham was sentenced to one year incarceration and fined $3,000. The incarceration and part of the fine were stayed subject to Cham serving 90 days in jail and completing two years of probation.
The parties frame the primary issue as being whether the criminal statute making refusal to submit to a chemical test a crime under certain circumstances incorporates the affirmative defense of reasonable refusal to testing provided under the implied consent statute. While such an issue has not yet been decided by a Minnesota appellate court, we need not reach it in this case.
The district court declined to give Cham's requested instruction that reasonable refusal was a defense to the crime of refusing to submit to a chemical test. A defendant is entitled to an instruction on his or her theory of the case if there is evidence to support that theory. State v. Ruud, 259 N.W.2d 567, 578 (Minn. 1977). The trial court has the discretion in giving jury instructions. State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985). The trial court need only give an instruction if it is warranted by the facts and the relevant law. State v. Holmberg, 527 N.W.2d 100, 106 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995).
Even if the crime of refusal to submit to a chemical test does incorporate the affirmative defense of reasonable refusal, there is no evidence in the record to support an instruction on reasonable refusal. In its order denying Cham's motion to dismiss the charges regarding failure to submit to testing, the district court stated the following:
Defendant Cham had been through implied consent proceedings for driving under the influence twice before this incident. Additionally, Defendant had dealings with the legal system for failure to provide insurance and careless driving.
Having reviewed both VHS videocassettes introduced into evidence by the State, the Court finds that Defendant appears to have had no trouble understanding Sergeant Dybevick. Defendant's pronunciation was occasionally indistinct although Defendant did express his thoughts adequately in conversational English. Defendant had spoken with Sergeant Dybevick earlier in the evening during a domestic disturbance call and again later during the traffic stop. At no time did Defendant profess a lack of understanding or even ask Sgt. Dybevick to repeat himself. During the traffic stop, Defendant argued and pleaded with Sgt. Dybevick to give him a break and let him walk away because Defendant had only been trying to save his automobile from destruction. The traffic stop lasted well over 20 minutes, during which time Defendant talked for significant periods and almost without pause. Not until Defendant saw that he could not sway Sgt. Dybevick and that Defendant had no other recourse to avoid the machinations of the law, did Defendant say he needed an interpreter.
The Court is satisfied that Defendant is not linguistically handicapped. Defendant voluntarily waived his right to an attorney and comprehend the nature and consequences of his refusal to take the intoxilyzer.
The record supports these findings. Dybevick spoke with Cham for about two hours the night of the incident. At no time until the Miranda rights were read did Cham ask for an interpreter or give any indication that he could not understand what the officer was saying to him. The trial court's finding that Cham was able to communicate effectively in English is amply supported by the videotape in the record. The record also clearly shows that Cham initially refused to take the test, not because he did not understand the language but because he did not understand why he had to give another test when he had already given a PBT.
In an implied consent case, a refusal is not reasonable due to confusion as to the difference between a PBT and a breath test unless the officer failed to explain the difference between the tests. State Dep't Pub. Safety v. Held, 246 N.W.2d 863, 864 (Minn. 1976). The videotapes show that Dybevick tried to explain the difference between the two tests. It was not an abuse of discretion for the trial court not to give the requested instruction.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.